NVIDIA End-User License Agreement for PGI Software
NOTICE: PLEASE READ THIS DOCUMENT CAREFULLY BEFORE DOWNLOADING, COPYING OR
USING THE LICENSED SOFTWARE. THIS END-USER LICENSE AGREEMENT ("ELA") IS A
LEGAL AGREEMENT BETWEEN YOU, THE LICENSEE (A SINGLE PERSON, INSTITUTION, OR
LEGAL ENTITY) ("YOU"), AND NVIDIA CORPORATION, A DELAWARE CORPORATION HAVING
ITS PRINCIPAL PLACE OF BUSINESS AT 2788 SAN TOMAS EXPRESSWAY, SANTA CLARA CA
AND ITS SUBSIDIARIES ("NVIDIA") FOR THE LICENSED SOFTWARE, ASSOCIATED MEDIA,
PRINTED MATERIAL, ELECTRONIC DOCUMENTATION OR ANY PORTION THEREOF ("SOFTWARE").
NVIDIA IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON THE CONDITION THAT
YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS ELA. PLEASE READ THE ELA
CAREFULLY. BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THIS
SOFTWARE, YOU ACCEPT ALL OF THE TERMS OF THE ELA. IF YOU DO NOT AGREE TO THE
TERMS OF THIS ELA, DO NOT DOWNLOAD, INSTALL, COPY OR OTHERWISE USE THIS
SOFTWARE.
1) Ownership
The Software distributed and licensed to You hereunder, including, if
and when provided, any updates furnished to You for free or for
additional fees, is proprietary to NVIDIA or its licensors (NVIDIA and
licensors hereafter referred to as "Licensor"). The Software is not sold,
and instead is only licensed for Your use, strictly in accordance with
this Agreement. The Software is protected by copyright laws and
international treaty provisions. The Licensors retain all right, title
and interest to, and ownership of, the Software, including the copy
provided herein, and reserve all rights not expressly granted in this ELA.
2) Granting of License
2A) Except as set forth in Sections 3, 4 and 5 below, under the terms and
conditions of this ELA, You are hereby granted a limited, revocable,
nontransferable, and nonexclusive license, without the right to sublicense
or distribute, to use the Software subject to the restrictions and other
terms within. That use must be
(i) only by You,
(ii) only on a computer system running a specific operating system on
which the Software is designed to run and for which portions of
the Software and subsequent components in the compilation process
are intended to produce an executable image ("Target Systems")
for which the corresponding product license has been lawfully
entered into,
(iii) only on the network(s) and only by the number of users for
which the corresponding product license has been lawfully entered
into,
(iv) only to utilize no more than the maximum number of CPUs, or the
maximum number of processes, for which the corresponding product
license has been lawfully entered into, and
Except as set forth in Section 2B and Section 2C below, any other use of
the Software is strictly prohibited.
2B) If the Software is any version of the Software other than the "Developer"
version of the Software, this Section 2B, and not Section 2C below, shall
apply: You may distribute an end-user application that You build with the
Software that provides significant functionality distinct from that
included with the Software ("End-User Application") to users within Your
organization as well as third party users outside Your organization
("Sublicensees") for only such uses and/or Target Systems for which the
Software was designed and intended. You agree that any sublicense shall
not relieve You from Your obligations under this ELA. The Software
includes the run-time files, libraries and executables ("Run-Time Files")
that are bound into Your application by the linker or otherwise required
by Your application. You may also distribute separate dynamically-linked
or executable Run-Time Files required during the execution of Your End-User
Application. Whenever an End-User Application is used internally within
Your organization or by outside third parties, You shall contractually
require that all Sublicensees: (1) provide written or clickwrap assent to
the license terms under a written, legally enforceable agreement that has
the effect of protecting the Software and the rights of NVIDIA under terms
no less restrictive than this Agreement; and (2) abide by the following
restrictions:
(i) they shall not use the "PGI", "The Portland Group", or
"NVIDIA", name, logo, or trademarks in marketing the End-User
Application without prior written permission from NVIDIA,
(ii) they will maintain a valid copyright on the End-User
Application,
(iii) they are prohibited from modifying, adapting, translating,
reverse engineering, de-compiling, disassembling, or creating
derivative works, in whole or in part, based on the Software,
nor may they attempt in any manner to obtain the source code,
(iv) they disclaim any and all warranties on behalf of NVIDIA and
other applicable licensors,
(v) they disclaim, to the maximum extent permitted by law, NVIDIA's,
its affiliated companies and its licensors' liability for all
damages, direct or indirect, incidental or consequential, that
may arise from any use of the Software,
(vi) they agree not to export the Software, directly or indirectly,
in violation of U.S. export control laws or any export or
import regulations in other countries,
(vii) they will, without limitation, indemnify, hold harmless, and
defend NVIDIA and other applicable Licensors and their
respective affiliates and suppliers from and against any and
all claims, lawsuits, costs, and expenses, including attorney's
fees, that arise or result from their use or distribution of
the End-User Application, and
(viii) they shall strictly prohibit the further distribution of the
Run-Time Files by the user of the End-User Application.
Notwithstanding the above, the only Run-Time Files that may
be distributed as noted in this Section 2B are in the folders
or directories whose names begin with "REDIST".
2C) If the Software is a "Developer" version of the Software, so identified,
this Section 2C, and not Section 2B above, shall apply: You may only use an
End-User Application on the same computer system on which You installed the
Software and compiled such End-User Application. You do not have any
rights to distribute, deploy, or otherwise transfer the End-User
Application to any other computer system, over a network, or to
Sublicensees. You may not allow anyone other than You to use the End-User
Application.
3) Software from Microsoft
You acknowledge that as part of the Software You may receive Run-Time
Files in the form of Microsoft Foundation Classes ("MFCs"), Active
Template Libraries ("ATLs"), and/or "C" Runtime files ("CRTs") in
binary form only ("Microsoft Distributable Code"). Notwithstanding
any other provision of this ELA, You acknowledge and agree
(A) that You have a limited right to use the Microsoft Distributable
Code to design, develop, or test for use with the Software only,
(B) that You or Your end-users of the Microsoft Distributable Code
may only use it to create programs that run natively on
Microsoft platforms, and
(C) to the following restrictions: You and Your end-users:
(i) will not alter any copyright, trademark, patent, or other
legal notice or disclaimer in the Microsoft Distributable
Code,
(ii) will not run the Microsoft Distributable Code on a
platform other than a Microsoft platform, and
(iii) will not include Microsoft Distributable Code in
malicious, deceptive, or unlawful programs.
Further, You will require end users of the Microsoft Distributable
Code to agree to terms at least as protective as this ELA.
4) Software from Oracle America, Inc.
You acknowledge that as part of the Software you are receiving access
to Java(tm) 2 Runtime Environment (J2RE), version 1.4.2 or subsequent
versions ("Java Code"). Notwithstanding any other provision of this
ELA, You are hereby granted a limited, revocable, nontransferable,
and nonexclusive license, without the right to sublicense, to use the
Java Code complete and unmodified for the sole purpose of running
Java applets and applications intended to run on the JavaTM 2
Platform Standard Edition 5.0 (J2SE 5.0) or subsequent versions on
Java-enabled general purpose desktop computers and servers.
5) Software from International Business Machines Corporation or one of its
subsidiaries ("IBM")
You acknowledge that some components of the Software may be owned and
under license from IBM ("IBM Components"). Use of IBM Components are
subject to the IBM International Program License for Non-Warranted
Programs (LA_*) and the License Information documents (LI_*) for your
region located in the linuxpower//doc/IBM/ directory
(collectively, the "IBM Components Agreement"). By agreeing to the
terms of this ELA, you also agree to the terms of the IBM Components
Agreement.
6) Third Party Software
You acknowledge that some components of the software provided with
the Software may be open source, freeware, or other software provided
to NVIDIA under license from third parties ("Third Party Components").
Such software is provided to you subject to the terms and conditions
that accompany and are applied to such Third Party Components by third
parties, and may require notices and/or additional terms and conditions,
which are made a part of and incorporated by reference into the ELA.
Please be sure to consult the individual product files and/or
documentation for specific copyright notices and author attributions.
Use of the Third Party Components by you will be governed by the terms
and conditions of such license(s) in addition to this Agreement. To the
extent the terms of this license conflict with the terms of such third
party licenses with respect to the Third Party Component, the terms of
such third party licenses will govern. By agreeing to the terms of this
ELA, you also agree to the terms of such licenses.
7) Restrictions
7A) You may make one (1) copy of the Software in machine-readable form,
solely for archival or backup purposes, provided the copyright notice
and other proprietary legends on the Software are included on any
archival/backup copies. You may not modify, adapt, translate,
reverse engineer, de-compile, disassemble, or create derivative
works, in whole or in part, based on the Software, nor attempt in any
manner to obtain the source code. You may not rent, lease, loan,
sublicense, or transfer, electronically or otherwise, the Software to
others or authorize any portion of the Software to be copied onto another
individual or legal entity's computer except as may be expressly provided
herein. The Software is licensed as a single product.
7B) The term "proprietary" as used in this ELA or in the Software does
not establish a confidential relationship between the Licensor and
You and does not in itself provide You any rights to the Software.
You acknowledge that the Licensors have valuable intellectual
property rights in the Software and agree to respect and protect such
intellectual property rights. No right, title, or interest in or to
any trademark, service mark, logo or trade name of the Licensors is
granted under this ELA.
7C) You acknowledge and agree that the Software is not designed or
intended for use in on-line control equipment in hazardous environments
such as nuclear activities, aircraft navigation or control, or life
support systems. The Licensors disclaim any express or implied warranty
of fitness for such uses.
7D) You will not modify, create derivative works of, or distribute any of the
Software so that any part of it becomes subject to an Excluded License. As
used in this ELA, an "Excluded License" is one that requires, as a
condition of use, modification, and/or distribution, that
(i) the Software be disclosed or distributed in source code form; or
(ii) others have a right to modify it, or
(iii) the Software becomes redistributable at no charge, or
(iv) the Software loses its proprietary nature.
Therefore, without the prior written permission of the applicable
Licensors, You may not modify the Software in any way. In particular,
You may not introduce or commingle with the Software any source or object
code that is governed by an open source or public license of any kind.
EXCEPT AS PROVIDED HEREIN, IF YOU OTHERWISE TRANSFER POSSESSION OF ANY
COPY, MODIFICATION OR MERGED PORTION OF THE SOFTWARE TO ANOTHER PARTY,
YOUR LICENSE IS AUTOMATICALLY TERMINATED.
7E) Under no circumstances should anything in this Agreement be construed as
NVIDIA granting by implication, estoppel or otherwise, (i) a license to
any NVIDIA product or technology other than the Software; or (ii) any
additional license rights for the Software other than the licenses
expressly granted in this Agreement.
8) Feedback
You may, but are not obligated to, provide NVIDIA any suggestions,
comments and feedback regarding the Software delivered to you hereunder
("Feedback"). NVIDIA may use and include any Feedback that You have
voluntarily provided to improve the Software and other related NVIDIA
technologies. Accordingly, if You provide Feedback, You grant NVIDIA and
its licensees a perpetual, irrevocable, worldwide, royalty-free, fully
paid-up license grant to freely use, have used, sell, modify, reproduce,
transmit, license, sublicense (through multiple tiers of sublicensees),
distribute (through multiple tiers of distributors), and otherwise
commercialize the Feedback in the Software and other related technologies.
9) Limited Warranty; Limitation of Liability
THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSORS FURTHER
DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF
THE USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH
YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
THE LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT,
SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER
PECUNIARY LOSS) ARISING OUT OF THIS ELA OR THE USE OF OR INABILITY TO
USE THE SOFTWARE, EVEN IF THE LICENSORS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, TO THE
EXTENT THAT NVIDIA MAY BE HELD LEGALLY LIABLE TO YOU BY A COURT OF
COMPETENT JURISDICTION UNDER CONTRACT, TORT, OR ANY OTHER LEGAL
THEORY, THE MAXIMUM LIABILITY OF THE LICENSORS SHALL NOT EXCEED THE
APPLICABLE PURCHASE PRICE OF THE SOFTWARE OR ONE THOUSAND DOLLARS
(US$1,000), WHICHEVER IS GREATER.
NVIDIA has no obligation to support or provide any updates of the
Software.
10) Indemnity and Audit
You agree to indemnify, defend, and hold the Licensors harmless from
and against any and all claims, liabilities, damages, penalties,
settlements, and costs and expenses (including, without limitation,
reasonable attorneys' fees and court or arbitration costs), asserted
by any and all third parties (collectively "Claims") against the
Licensors, and their respective employees, directors, officers, and
agents alleging or resulting from:
(i) Your breach of any term or condition of this ELA;
(ii) alleged or actual infringement of the intellectual property or
other proprietary rights of a third party by You or Your
sublicensees; unauthorized alteration of the Software or
derivative products by You or Your sublicensees;
(iii) combination of the Software or derivative products with other
software, products or materials not in accordance with the
terms of this ELA; or
(iv) any acts or omissions by You, Your employees, directors,
officers, and agents or sublicensees either under this ELA or
outside its scope, including personal injury, death, or
property damage to anyone or anything.
NVIDIA reserves the right, upon reasonable prior written notice to You
and during Your normal business hours, to audit Your use of the
Software and any derivative products made therefrom to confirm Your
compliance with the terms of this ELA.
11) Software Export
You acknowledge that the Software and NVIDIA products are subject to the
U.S. Export Administration Regulations (the "EAR") and agree to comply
with the EAR. You confirm that you will not export or re-export the
Software or any NVIDIA products, directly or indirectly, to: (1) any
countries that are subject to US export restrictions (currently including,
but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria);
(2) any end user who you know or have reason to know will utilize them in
the design, development or production of nuclear, chemical or biological
weapons, or rocket systems, space launch vehicles, and sounding rockets,
or unmanned air vehicle systems; or (3) any end user who has been
prohibited from participating in U.S. export transactions by any federal
agency of the U.S. government. In addition, you are responsible for
complying with any local laws which may impact your right to import,
export or use the Software or any NVIDIA products. You acknowledge that
the use of the Software or any NVIDIA products by military end-users or for
military end-uses is prohibited in China.
12) Software Manuals
All proprietary documentation provided with the Software is copyrighted
and may not be copied, photographed, reproduced, translated or reduced
to any electronic medium or machine-readable form in whole or in part
without the express, written, prior approval of NVIDIA.
13) Government Use
The Software is commercial computer software provided with RESTRICTED
RIGHTS. Use, duplication or disclosure of the Software by the U.S.
Government or a U.S. Government subcontractor is subject to the
restrictions set forth in the Agreement under which the Software was
obtained pursuant to DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS
252.227-7013(c)(1)(ii) (Oct 1988), FAR 12.212(a)(1995), FAR 52.227-19,
(June 1987) or FAR 52.227-14(ALT III) (June 1987), as applicable.
Contractor/manufacturer is NVIDIA, 2788 San Tomas Expressway, Santa Clara,
CA 95051. Use of the Software by the Government constitutes acknowledgment
of NVIDIA's proprietary rights therein.
14) Termination
The license granted to You in this ELA is effective until terminated.
This ELA will automatically terminate if Customer fails to comply with any
of the terms and conditions hereof. You may terminate the license at any
time by returning and/or destroying the Software together with all copies.
Upon termination of the license for any reason, you agree to destroy all
copies of the Software.
Defensive Suspension. If Customer commences or participates in any legal
Proceeding against NVIDIA, then NVIDIA may, in its sole discretion, suspend
or terminate all license grants and any other rights provided under this
ELA during the pendency of such legal proceedings.
15) Surviving Terms
In the event this ELA is terminated for any reason, the following
provisions shall survive termination and shall remain in full force
and effect: 1, 6, 7, 8, 9, 10, 11, 13, 14 and 18.
16) No Assignment
This Agreement, and each party's rights and obligations herein, may
not be assigned, subcontracted, delegated, or otherwise transferred
by You without NVIDIA's prior written consent, and any attempted
assignment, subcontract, delegation, or transfer in violation of the
foregoing will be null and void. The terms of this Agreement shall
be binding upon assignees.
17) Controlling Law and Complete Agreement
This Agreement shall be construed and interpreted under the laws of
the state of Delaware, not including its conflict of laws principles.
The United Nations Convention on Contracts for the International Sale
of Goods is specifically disclaimed. You and NVIDIA agree that all
disputes arising out of this Agreement shall be subject to the exclusive
jurisdiction of and venue in the federal and state courts within Santa
Clara County, California, and both parties hereby consent to the
personal and exclusive jurisdiction and venue of these courts. If any
provision of this ELA, or portion thereof, is found to be unenforceable,
that provision shall be enforced to the maximum extent possible and the
remainder of this ELA shall continue in full force and effect.
18) Privacy Notice & Consent to Collection and Use of Information
You hereby acknowledge that the Software accesses and collects non-
personally identifiable information about You and Target Systems as well
as configures Target Systems in order to (a) properly optimize such system
for use with the Software, (b) deliver content through the Software, and
(c) improve NVIDIA products and services. Information collected by the
Software includes, but is not limited to, Target System's (a) hardware
configuration and ID, (b) operating system and driver configuration,
(c) installed applications, (d) applications settings, performance, and
usage data, and (e) usage metrics of the Software. In addition, You hereby
acknowledge that the Software may access and collect personally
identifiable information about You, such as your PGI user credentials, in
order to (a) properly optimize such system for use with the Software,
(b) deliver content through the Software, and (c) improve the Software
and/or NVIDIA products and services. To the extent that You use the
Software, You hereby consent to all of the foregoing, and represent and
warrant that You have the right to grant such consent. In addition, You
agree that You are solely responsible for maintaining appropriate data
backups and system restore points for Target System, and that NVIDIA will
have no responsibility for any damage or loss to Target System (including
loss of data or access) arising from or relating to (a) any changes to the
configuration, application settings, environment variables, registry,
drivers, BIOS, or other attributes of Target System (or any part of Target
System) initiated through the Software; or (b) installation of any Software
or third party software patches initiated through the Software. The
Software may contain links to websites and services. We encourage you to
review the privacy statements on those sites and services that you choose
to visit so that you can understand how they may collect, use and share
your personal information. NVIDIA is not responsible for the privacy
statements or practices of sites and services controlled by other
companies or organizations.
You represent and warrant that the non-personally identifiable information
that You have furnished in connection with your registration for the
Software is complete and accurate. You also acknowledge that from time to
time, NVIDIA may collect, use, and disclose such information about You
and/or Your system in connection with the Software in accordance with
NVIDIA's privacy policy, available at URL
http://www.nvidia.com/object/privacy_policy.html.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS ELA AND AGREE TO BE BOUND BY ITS TERMS.
YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT
BETWEEN YOU AND NVIDIA AND THAT IT SUPERSEDES ANY PRIOR AGREEMENT, ORAL OR
WRITTEN, ANY PROPOSAL, AND ANY OTHER COMMUNICATIONS BETWEEN YOU AND NVIDIA
RELATING TO THE SUBJECT MATTER OF THIS ELA.
Rev 2016-Oct